FRANCE Law and Practice Contributed by: Malik Idri and Mathieu Relange, FTPA Avocats
4.6 Non-Competition Issues The FCA’s review is strictly limited to competition risks. However, under Article L. 430-7-11 FCC, the Minister of the Economy has a limited “public interest” override after a Phase II decision. Within 25 working days, the Minister may “call in” the case and substitute their own decision for reasons of general interest other than competition, including industrial development, com - petitiveness of undertakings in light of international competition, or creation or preservation of employ - ment. This override procedure is rarely used. In the Financière Cogifeo / Agripole case in 2018, the FCA conditionally cleared the transaction but imposed significant rem - edies. The Minister of the Economy intervened and authorised the transaction unconditionally, citing the need to preserve employment. 4.7 Special Consideration for Joint Ventures A joint venture may arise from: • the creation of a completely new joint structure; • the contribution of assets (eg, contracts, know- how or other assets) previously held individually by the parent companies to an existing joint venture, enabling it to expand its activities; and • the acquisition of joint control over an existing undertaking by one or more new shareholders. The FCA will pay particular attention to the risk of coordinated effects between the parent undertak - ings. This is especially relevant where the joint venture (i) provides a platform for collusion, or (ii) facilitates information exchange that could align competitive behaviour in markets where the parents remain inde - pendently active. 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The FCA may prohibit a transaction if it is likely to harm competition, particularly through the creation or strengthening of a dominant position, or the creation
or strengthening of purchasing power that places sup - pliers in a situation of economic dependency, and if the merger does not make a sufficient contribution to economic progress to offset any anticompetitive effects (Article L. 430-6 FCC). Under Article L. 430-7, III FCC, the FCA has the authority to prohibit a transaction directly, either in Phase I or Phase II. For examples of prohibition decisions issued by the FCA, please see Decision No 20-DCC-116 of 28 October 2020, Soditroy / E . Leclerc , and Decision No 21-DCC-79 of 12 May 2021, Ardian / Pipeline Méditer- ranée - Rhône . In addition, many notifying parties tend to abandon or restructure problematic transactions rather than face a prohibition (see, for example, TF1/M6 in 2022). 5.2 Parties’ Ability to Negotiate Remedies When the FCA identifies competition concerns in Phase I or Phase II, the notifying parties may propose commitments to address them. The FCA is not obligated to accept the parties’ pro - posals and may instead impose its own remedies. However, it exercises this power only exceptionally – and increasingly rarely. In practice, most conditional clearances stem from negotiated commitments rather than remedies imposed unilaterally by the FCA. Types of Remedies Used in Practice The FCA’s Guidelines and case practice indicate that it can impose structural remedies, behavioural rem - edies, or a combination of both. The FCA explicitly prefers structural remedies, as they are generally more effective and easier to monitor. Structural remedies typically involve changes to the business structure, such as divestiture of assets, activities or shareholdings, or amendments to corpo - rate or contractual links. Behavioural remedies impose ongoing obligations on the merged entity, such as access commitments, licensing obligations or prohi - bitions on certain commercial practices.
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